Citation Nr: 20009948 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-07 990 DATE: February 6, 2020 ORDER Entitlement to total disability based on individual unemployability (TDIU) prior to February 18, 2016, is denied. FINDING OF FACT Prior to February 18, 2016, the Veteran’s service-connected disability did not render him unable to obtain and maintain gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to February 18, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from June 1966 to April 1970. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran requested a hearing before the Board. See February 2016 VA Form 9. The Veteran did not attend the scheduled hearing and has not requested that the hearing be rescheduled. Accordingly, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.702 (d) (2018). The Veteran contends that he is entitled to a TDIU as a result of his service-connected disabilities. A TDIU claim, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In October 2013, the Veteran raised the issue of a TDIU by submitting a VA 21-4138 Statement in Support of Claim, stating that he was unable to work due to his service-connected posttraumatic stress disorder (PTSD). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2018). A substantially gainful occupation has been defined as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” M21-1 VA Adjudication Procedure Manual, Part IV.ii.2.F.1.c. It also has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Whether a veteran is capable of substantially gainful employment is determined by the VA adjudicator and is not a medical determination. 38 C.F.R. § 4.16 (a). When evaluating TDIU entitlement, the pertinent inquiry is whether a claimant’s service-connected disability alone is of sufficient severity to produce unemployability. The impact of non-service connected disabilities is not to be considered. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that service connection was granted for coronary artery disease (CAD) status post coronary bypass graft with a 100 percent rating assigned effective February 18, 2016. Therefore, the Board’s analysis of entitlement to TDIU will focus on the appeal period prior to February 18, 2016. During the period on appeal, service connection was in effect for PTSD with a 70 percent rating assigned. The schedular criteria for TDIU have been met. 38 C.F.R. § 4.16 (a) (2018). However, the Board determines that a preponderance of the evidence is against finding that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected PTSD prior to February 18, 2016. The record reflects that the Veteran has been unemployed since February 2008. According to the Veteran’s Social Security Administration (SSA) records, his previous employment was that of a self-employed cabinet maker/carpenter. In addition, the Board notes that the Veteran has a high school education. In November 2013, the Veteran wrote that he experienced anxiety, anger, sleeplessness, hypertension and deep depression. He did not like to be around people and could not socialize or work. He alleged that these conditions caused him to be unable to work for the preceding four years. The Veteran underwent a VA PTSD examination in January 2014. The examiner diagnosed PTSD, major depressive disorder, and unspecified alcohol related disorder. The examiner was unable to separate out the symptomology attributable to separate mental disorders. The mental disorders were found to be comorbid and mutually exacerbating. It was reported that the Veteran worked for Westinghouse after his military service and then started his own contracting business which he did until he was hurt approximately four years prior to the examination. The Veteran stated that he felt physically able to do some work tasks but had significant difficulties concentrating to the point that he cannot complete tasks and experienced irritability and difficulty working with others. He also stated that he began experiencing irritability and nightmares around the time of his injury because he was unable to work. The Veteran described his current mood as “kind of numb” and feeling depressed or down “pretty much all of the time” with passive suicidal thoughts but denied homicidal ideation. The Veteran reported difficulties with his memory which may be related to his alcohol use. The examiner did not review the Veteran's claims file. The examiner did report he reviewed the Veteran's VA treatment records. The examiner found that the Veteran met the diagnostic criteria for PTSD. It was opined that the best summarization of the Veteran's level of occupational and social impairment with regard to his mental disorders was occupational and social impairment with reduced reliability and productivity. The examiner also found that the Veteran experienced depressed mood, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner did not find that the Veteran experienced total occupational impairment as a result of his PTSD symptoms. The Board finds that this VA opinion is adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran’s lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). This opinion is also probative because it is based on an accurate medical history and provide an explanation that contain a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran submitted a statement in February 2014 wherein he wrote that he was unable to work due to his mental and physical health. He further wrote that he was degenerating and suicidal and that he could not get anything done. This statement regarding the suicidal thoughts is directly contradicted by the contemporaneous clinical records which indicated that the Veteran consistently denied having suicidal thoughts or plans. The Veteran submitted a statement in May 2015 wherein he alleged that, from 2006 to 2009, he was unable to stay on a job site due to the loud noise of construction. He alleged that he started to have panic attacks and days of depression, an inability to concentrate and insomnia. He lost his income in 2009. The Board notes the credibility of this statement is directly contradicted by the Veteran's actions at the time that he applied for Social Security Disability in 2009. At that time, the Veteran's sworn submission was that he was unemployable as a result of an inability to use his left arm and hand. He reported a left shoulder injury and left-hand nerve damage. There is no objective evidence of record to support the Veteran's allegation that he was unable to obtain employment as a result of difficulty working with others or memory or concentration problems. The Veteran has alleged such problems, but no clinician has observed this symptomology. The Veteran was prescribed medication to aid with his memory. Based on the foregoing, the Board finds persuasive evidence that the Veteran was unable to secure or follow any substantive gainful employment prior to February 18, 2016. The Board’s finding is supported by the VA examiner’s determination that the PTSD did not preclude the Veteran from securing such employment. The evidence of record shows that, while there is evidence of interference with employment, the Veteran’s PTSD did not render him unable to secure or follow a substantially gainful occupation prior to February 18, 2016. The evidence of record does not show the Veteran’s inability to work was due to the Veteran’s PTSD, but was rather due to a non-service connected disability. As such, the Veteran’s claim for TDIU would not be warranted. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his PTSD symptoms impacted his ability to secure or follow substantial gainful employment. The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). That stated, the evidence of record does not favor a finding that the Veteran's service-connected disability alone rendered him unable to secure or follow gainful employment. The Board further notes that the Veteran's allegations of the cause of his inability to work due to mental disorders is contradicted by his prior reports to Social Security that he was unemployable due to orthopedic problems. His allegations as to having suicidal ideation are also directly contradicted by other evidence of record based on the Veteran's self-reported symptoms. The inconsistent reports which contradict the contemporaneous evidence leads the Board to place reduced probative value on the Veteran's self-reported medical history and his alleged reasons why he was unemployable during the appeal period. Given the foregoing, the Board finds that the Veteran’s service-connected disability did not prevent him from securing and following gainful employment prior to February 18, 2016. Despite limitations imposed by his service-connected disability, the weight of the probative evidence is against a finding that he was unable to secure or follow a substantially gainful occupation due to his service-connected disability. (Continued on the next page)   As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Therefore, entitlement to TDIU prior to February 18, 2016 is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Massey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.